U.S. District Court Judge James J. Brady on Thursday morning ordered a stay of execution for death row inmate Christopher Sepulvado, who had been scheduled to die by lethal injection on Ash Wednesday, Feb. 13.
Presiding at Baton Rouge in the court’s Middle District, Brady said Sepulvado deserves more time to hear the facts about how the state intends to kill him using a single drug, pentobarbital, instead of the three drugs used in past executions.
Sepulvado needs information to determine whether or not his Constitutional rights are being violated, Brady said: “Fundamental fairness requires no less.”
From the bench, Brady said there were two issues raised in the hearing: the Eighth Amendment, assuring freedom from cruel and unusual punishment, and the Fourteenth Amendment, guaranteeing the right to due process.
The stay was issued in connection with a lawsuit filed in federal court by attorneys for Jessie Hoffman, another inmate sentenced to the death penalty in Louisiana.
Sepulvado’s lawyer, Gary Clements, filed a motion in January to merge his client’s complaint with Hoffman’s lawsuit, which faulted the state for not providing basic information about the three-drug lethal injection process. Hoffman’s attorney argued that the three-drug process could be cruel and unusual punishment, violating his constitutional rights.
Clements raised the same argument on Sepulvado’s behalf, this time targeting the one-drug process. He said he needed more time and resources to determine if it amounts to cruel and unusual punishment.
Louisiana lacks a clear procedure—a “protocol”—for executions, Clements argued, adding, “It has been changed multiple times in the past 10 years.”
Clements said he and the other defense lawyers needed more information than what was in hand: a two-page Wikipedia article about pentobarbital and a 15-page document that the judge said might be available.
Specifically, his client wants information about who is administering the drug, the shelf life of the pentobarbital and when the state obtained it, Clements said.
The state’s response also pivoted on protocol. Wade Shows, an attorney for the Department of Public Safety and Corrections, said the defense needed to file an interrogatory and produce a witness or evidence on behalf of the condemned.
“We need to do it an appropriate manner, and not some willy-nilly fashion,” Shows said during debate. He then handed over an affidavit signed by Department of Corrections pharmacist Mary Labatut, giving information about the drug’s distribution.
Cecelia Trenticosta Kappel, a lawyer for Hoffman, countered by arguing that a conference for the case, filed Dec. 20, is scheduled for March and that a normal timetable is in effect for the prosecution to reveal the evidence it intends to use at trial, as required by the rules regarding the pre-trial phase of litigation known as discovery.
Clements said he could not provide the state’s evidence until he got more information about the drug.
Judge Brady noted that the inmates’ lawyers had been asking for the execution protocol since 2010.
“What is the problem, Mr. Shows?” Brady asked. “They have asked for the protocol.”
Further information may be required of the state during a hearing Friday on the civil lawsuit that Clements has filed against the Department of Corrections for alleged violations of public records law.
Clements said he was happy with the judge’s ruling on Thursday.
“I am relieved and pleased and not really surprised,” he said. “I think the case is pretty clear-cut.”
The lethal drug
Pentobarbital, the drug the state says it will use for future executions, is a barbiturate.
According to an article in drugs.com, pentobarbital slows the activity of the brain and nervous system, and has been used to treat insomnia and as a sedative for surgery.
Texas first used a single injection of pentobarbitol in the execution on July 18 of Yokamon Hearn, 33, who was convicted in the 1998 carjacking and murder of a Dallas stockbroker.
In the years since 1982, Texas had used pentobarbital as part of a three-drug cocktail, including pancuronium bromide, a muscle relaxant. With pancuronium bromide now in short supply, several other states—including Ohio, Arizona, Idaho and Washington as well as Louisiana—have decided to switch to the single-injection procedure.
Defense attorney Michael Rubenstein argued at a hearing on Tuesday that ambiguities about the state’s source of pentobarbitol leave in doubt whether Louisiana’s supply is legal.
During today’s hearing, Shows provided an affidavit stating that the pentobarbitol on hand at the Louisiana State Penitentiary at Angola was purchased from Lunbeck Inc., an Illinois pharmaceutical company that is the only source of FDA-approved pentobarbital.
But according to defense lawyers, since July 2011 Lunbeck has opposed use of its pentobarbitol for lethal injection. According to a company press release: “Lundbeck adamantly opposes the distressing misuse of our product in capital punishment. Since learning about the misuse we have vetted a broad range of remedies—many suggested during ongoing dialogue with external experts, government officials, and human rights advocates,” Lundbeck chief executive officer Ulf Wiinberg said.
“While the company has never sold the product directly to prisons and therefore can’t make guarantees, we are confident that our new distribution program will play a substantial role in restricting prisons’ access to [the drug] for misuse as part of lethal injection,” Wiinberg said.
Rubinstein argued that the company’s restrictions on use of the drug for executions make it likely that Louisiana’s supply is years old, casting doubt on its efficacy.
Louisiana’s most recent execution, in 2010, was of Gerold Bordelon, 47, for the murder of Courtney LeBlanc. Bordelon was executed by use of the three-drug cocktail.
Sepulvado was convicted of murdering his six-year-old stepson by beating him in the head with a screwdriver and immersing his body in scalding water.
Sepulvado admitted in court that he hit his stepson with the screwdriver but claimed the scalding was accidental. The boy fell into the tub, he said.
Expert witnesses for the prosecution testified that splash marks were consistent with the boy being dipped into the water, according to a State Supreme Court Decision written in 1996.
Born in 1943, the seventh of eight children, Sepulvado abused alcohol from the age of 12 and has a history of mental illness, according to the decision.
The decision, which cites both a Uniform Capital Sentence Report and a Capital Sentence Investigation Report, stated that, despite his problems, the “defendant is able to distinguish from right and wrong.”
At the time of the stepson’s death, Sepulvado was 48, working as a painter and carpenter. He had married the victim’s mother three days before the boy’s death.
According to court files, the six-year-old had defecated in his pants and was then forced to sleep in soiled clothes and was denied food for two days.
The rest of the story reads as follows, quoted in the 1996 court decision:
“At around 10:00 a.m. on Sunday, [Sepulvado] and the victim were in the bathroom, preparing to attend church services. [Sepulvado] instructed the victim to wash out his soiled underwear in the toilet and then take a bath. When the victim hesitated to do so, [Sepulvado] hit him over the head with the handle of a screwdriver several times with enough force to render him unconscious. Thereafter, the victim was immersed in the bathtub which was filled with scalding hot water.”
The boy was taken to the hospital approximately three hours later, according to the court documents, where he was pronounced dead. The death was attributed to scald burns covering 60 percent of the victim’s body.
“The scalding was so severe that the victim’s skin had been burned away. In addition to the burns, medical examination revealed that the victim had been severely beaten. The victim’s scalp had separated from his skull due to hemorrhaging and bruising,” the document continues.
A DeSoto Parish jury convicted Sepulvado of murder and imposed the death penalty in April 1993.
Sepulvado’s lawyers have filed several appeals at the state and federal levels; all of them have been denied.
The appeals have cited everything from incompetent counsel to the death sentence being disproportionate to the crime.
“Even with these severe injuries, defendant did not seek medical attention for the victim until three hours later, after the victim had gone into shock, began vomiting, and died from the burns,” the State Supreme Court wrote in the 1996 decision. “Undoubtedly, considering the nature of the abuse visited upon this six-year-old child over the weekend preceding his death, the boy was the victim of pitiless torture and needless infliction of pain.”
Recent efforts on Sepulvado’s behalf have focused not on guilt or innocence but on his advanced age and his embrace of Catholicism.
At the age of 69, Sepulvado would be the oldest inmate ever to be put to death by Louisiana, according to the Louisiana Coalition for the Alternatives to the Death Penalty.
“Mr. Sepulvado…consistently expresses remorse for his crime and has worked to turn his life around since he became incarcerated. He has been a model prisoner during his time at Angola, ministering to and tutoring other inmates,” the petition reads.
“Mr. Sepulvado was chosen by the prison itself to spiritually guide fellow inmates. He wishes to have his death sentence commuted to life without opportunity of parole so that he might attend the Louisiana Theological Center at Angola.”